Family Reunification in UK Law

(129) To summarise, AM can lay claim to a series of procedural, or due process, protections and safeguards enshrined in three separate legal regimes: EU law, the Human Rights Act 1998 and the common law. Based on the analysis, findings and conclusions set forth above he has been denied the safeguards identified.

Thus while on the one hand it would not achieve immediately his goal of family reunification, on the other this would protect his best interests while final checks and enquiries are completed. Furthermore, this step will enhance the prospects of a fresh decision making process which will respect his right to procedural fairness and other due process safeguards and guarantees and, simultaneously, facilitate the Secretary of State's corresponding legal obligation.

But subject to the effective scope of judicial review being narrower for this reason, the exercise by the Secretary of State of her discretion is subject to the ordinary public law principles of propriety of purpose, relevancy of considerations, and the longstop Wednesbury unreasonableness category and, because of the engagement of ECHR Article 8, the intensity of review which is appropriate in the assessment of the proportionality of any interference with Article 8 rights.

That is not to say that in a case where legal representatives contend that the Secretary of State ought to consider a person outside the jurisdiction on the ground that she is under a positive duty to admit that person to the United Kingdom for family reunification they are entitled entirely to rely on her. In the present case, the respondents' representatives had been in communication with the Secretary of State.

The evidence establishes clearly that the sponsor is under achieving as a person. This means that his contribution, actual and potential, to United Kingdom society is diminished. This arises in circumstances where he has demonstrated his willingness to adapt to United Kingdom culture and to study earnestly in this alien country. The prediction that society will secure some benefit if the sponsor achieves family reunification in this country is readily made.

Similarly, whilst an OFM in a non-Member State may be financially dependent upon a Union citizen because he is provided with accommodation or living expenses by the Union citizen, there is no reason why the Union citizen's movement to the host Member State would be discouraged.

The tight relationship between the exercise of rights by the Union citizen and the requirement that the OFMs accompanying or joining him should have been his dependants or members of his household in the country from which they have come very strongly suggests that that relationship should have existed in the country from which the Union citizen has come, and thus have existed immediately before the Union citizen was accompanied or joined by the OFM.